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January 22, 2007

A few more observations on the Cunningham opinion

There's so much more to say about the Court's work in Cunningham, I hardly know where to jump in.  Before heading home for the night, let me make a few more observations about the majority opinion:

1.   The Cunningham majority twice calls the Apprendi doctrine a "bright line rule" (which is how Justice Scalia described the rule in Blakely).  As I explained here a long time ago, the California lower court ruling reviewed in Cunningham was really possible because the Booker remedy obscured whatever bright line Blakely may have aspired to create.  Cunningham reveals that there are now six Justices eager to draw this constitutional bright line.

2.  Footnote 14 suggests that six Justices are not eager to have "Apprendi's bright line rule" include an offense/offender distinction that I have long been espousing.  Justices Kennedy and Breyer seem to have some affinity for such a distinction, but it seems that ship has sailed.  However....

3.  Still unclear now is the validity and scope of the "prior conviction exception" to "Apprendi's bright line rule."  My embrace of an offense/offender distinction was in part an effort to give this exception some conceptual vitality.  One would think that a "bright line rule" ought not be obscured by exceptions, which suggests the fate of the "prior conviction exception" may still be very much up in the air (although it may now qualify as super-duper precedent).

4.  The Cunningham majority emphasizes judicial fact finding as presenting constitutional problems, which suggests that the fact/judgment distinction that I have been also espousing (with some help) might still have legs.  I suppose time (and Claiborne and Rita) will tell.

January 22, 2007 at 06:34 PM | Permalink


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Why do you think Almendarez-Torres would qualify as "super-duper precedent"? Quite the contrary, I would have thought, with a majority of the Court (including Justice Thomas, the fifth vote in the case itself) now on record as saying it was wrongly decided, and given the monumental developments in Sixth Amendment law since 1998. True, the Court has repeatedly declined to grant cert to decide whether AT is still good law, but that shouldn't entitle the case to greater stare decisis value once the issue is (finally) joined for decision.

Posted by: Brian | Jan 22, 2007 7:15:54 PM

Alito's dissent - contrasted with the majority opinion - shows us that lower courts interpretation of Booker’s remedial opinion is in stark contrast with Apprendi, Blakely, and now Cunningham’s “bright line.” In essence, while Ginsburg claims to hold off on expressing an opinion on reasonableness review, the difference between the majority and dissent is simply how the two groups view post-Booker sentencing. (For a clear example of these conflicting visions of the post-Booker world, see Majority Op. at 12 n.10 (where the majority describes CA's system identical to pre-Booker sentencing and points out that Alito views it identical to post-Booker sentencing)).

Alito’s dissent illustrates this contrast and shows how he will answer Claiborne's second question - Is it consistent with Booker to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary facts? Through multiple passages about the impropriety of requiring fact-finding to impose a heightened sentence, the majority foreshadows that the answer is no. A contrary rule would be identical the CA's system where, "the middle term [read Guideline range] shall be selected unless imposition of the upper or lower term [read upper or lower variance] is justified by the circumstances in aggravation or mitigation." See Majority Op. at 5; see also n.10. Conversely, the dissent makes clear they believe the answer is yes, because reasonableness review "necessarily" "requires" the articulation of facts. See Dissent Op. at 4, 13, 14 (Alito, J. dissenting).

This leaves question 2 and 3 of Rita. Cunningham implies the presumption of reasonableness will be reversed if such a presumption means district courts judges will "start with the [Guideline range]" when fashioning a sentence. See Majority Op. at 6. However, I think the Court could easily uphold the presumption on one hand, while stressing that the presumption is strictly for appellate review only, and a district judge’s discretion is not and shall not be limited by this presumption. In other words, I believe after reading Cunningham that the Court will hold in Rita that even though appellate courts can presume a Guideline sentence is reasonable when reviewing a sentence, district judges must not give the Guideline range undue weight in fashioning the sentence in the first instance.

If they do answer yes to the validity of the presumption, then the Court will address Rita's third question presented. The Court will explain that 3553(a) - as opposed to reasonableness - is the district court's concern, so all sentences must be imposed after an explicit analysis of those factors. This will not constitute "fact-finding," but rather - as the Cunningham opinions described it - "policy judgement or subjective belief" of the judge, which everyone seems to agree is the correct province of the judge. See Majority Op. at 7. (On this point, I think Prof. Berman’s fact/judgement distinction, is a valid one that Cunningham supports).

Finally, I'll note that under this described scheme, the Booker remedial opinion would have
“reinstitute[d] the pre-Guidelines federal sentencing system” more than most lower courts thought it did. Cf. Dissenting Op. at 4 (Alito, J. dissenting).

Posted by: DEJ | Jan 22, 2007 7:45:22 PM

Regarding Almendarez-Torres as precedent, see Justice Stevens' opinion last term regarding denial of certiorari in Rangel-Reyes: http://www.supremecourtus.gov/opinions/05pdf/05-10706Stevens.pdf

Posted by: Kent Scheidegger | Jan 22, 2007 7:50:41 PM

I am still basically confused by this opinion. I read it to mean that the Judge can enhanced a sentence by ponderence of evidence unless it does not go over the statutory maximum. ex. The satutory maximum for bank robbery is 20 years. If the Jury verdict is guilty and the guidelines range is 5 years can the judge use other factors to increase to 10 years as long as it not passed the 20 years - and is revelant satutory max the same as statutory max. I am confused.

Posted by: Welch | Jan 22, 2007 7:58:15 PM

I overnighted to the California Supreme Court today a petition for review as they expressly reserved the Cunningham issue on a prior denial. I strongly suggest that attorneys file for a re-sentencing before there is a Booker fix. If you were asleep during the Post Blakely-Ameline One era, your clients are still in jail. Once Booker was decided, we went back to the defacto mandatory guidelines.

Posted by: Ronald Richards | Jan 22, 2007 9:48:57 PM

It seems to me that what the Supreme Court wants done is to give judges discretionary power to sentence while staying in the guidelines of equal and similar situations... how is this really going to happen? A defense attorney is going to actually have to do his job at sentencing and be proactive in order to present his clients best interest at sentencing. Public defenders will have to have a serious data base in order to offer creative sentencing to a judge. I agree with apprendi and oppose the fact that many states like mine simply sidestep what the ruling stood for, but in this state judges have no control over their courts and the DA's will have sentencing power and control. This ruling only will hurt Colorado Inmates in the long run as the power of the prosecution in the court room will show.

Posted by: George Roberts | Jan 22, 2007 11:46:40 PM

Take a look at Blakely. Statutory maximum is a term of art -- it just means the maximum sentence that the judge could legally impose without recording another factual finding of some kind. In this case, it means the middle term, which is mandatory unless the judge "finds" another "fact", namely that there is an aggravating circumstance mandating a higher sentence.
Well thought out. It seems to me that Alito has either 1) written a birlliant attack on the constitutionality of the Booker remedial opinion or 2) written an indirect attack on the Apprendi rule itself. What he certainly hasn't done, however, was explain how the California or Federal systems could co-exist with the Apprendi rule. To put it another way, he failed to distinguish Blakely.

Posted by: RW | Jan 23, 2007 10:37:04 AM

With respect Doug, I believe you misunderstand the situation. The distinction is not between kinds of information (crime and offender) or between facts and judgments. It is between provocations that have an open texture and those with a closed texture. Steven Pinker is a highly respected cognitive scientist. His book Words and Rules has a chapter entitled Digital Mind In An Analog World. People often think about the same thing in two different ways. Robbery is a crime; it is also an offense. Crime is a concept that has a closed texture, or fixed boundary; our responses to crimes are determinate. Offense is a concept that has an open texture; our responses to offenses are discretionary within a range. The same is true of being a criminal offender, which also has an open texture. All three are provocations that trigger sentencing responses.

As noted in Booker and Cunningham, there is no Sixth Amendment problem with discretionary decision-making so long as is involves offenses, which have an open texture. There is a problem if discretionary decision-making is used in connection with crimes, which have a closed texture. Of course, the simple solution is to think about threatening situations both ways at the same time. There is no reason why sentencing systems cannot be both determinate and discretionary, depending on the provocation.

Lawyers should ask themselves, why does the Double Jeopardy Clause refer to offenses and not crimes? Using Pinker’s language, I believe lawyers tend to have digital minds in an analog world.

Posted by: Tom McGee | Jan 23, 2007 1:28:00 PM

"he failed to distinguish Blakely."

I think Alito's reasoning can be described in this syllogism:

(1) the Booker Remedial Opinion must describe a system that is consistent with the Sixth Amendment as construed, in Blakely and in the Booker Constitutional Opinion;

(2) the California system is functionally indistinguishable from the system described in/created by the Booker Remedial Opinion;

(3) hence, the California system must be constitutional.

I suspect that we will learn from Rita additional reasons why the Court thinks that (2) is flawed. That said, however, it seems to me that the real flaw, such as it is, may lie in assumption (1). If so, the lasting contribution of the Alito opinion may be to illustrate the deep(ening) tension between the Booker Remedial Opinion and the holding of Blakely. But only Justice Ginsburg knows for sure.

Posted by: Brian | Jan 23, 2007 6:35:43 PM

RW. Thanks for Answering. Simply Ques. Still confused. Again. Federal - Bank Robbery- Satutory max 20 yrs. Sentence: Guidelines-5 yrs - ponderance of evidence-10 yrs. Is the stat.max based on guideline of 5 yrs or can the judge sentence up to the 20 yrs statutory max. Which one is correct - Any time over 5 yrs or any time over 20 years would be a 6th amend violation based on Apprendi.

Hope I am clear - Layperson - Thanks

Posted by: Welch | Jan 23, 2007 8:52:07 PM

The problem with Alito's dissent is that it's simply factually wrong for 2 reasons. First, Clairborne and Rita may reveal that the federal system isn't quite as open as the courts of appeals think it is. But second, even if Booker's remedial section remains untouched, it's not the same as the CA system.

The CA system was the same as the Washington system - each offense has a fixed sentence, and the judge can only go up by finding extra facts. If the federal system is a true advisory system, then a federal judge can go up for no reason at all. This, according to the Breyer 5, doesn't violate the 6th A. But Justice Ginsburg was obviously not intending her vote in Booker to be a return to post-Apprendi, pre-Blakely jurisprudence. Her majority opinion in Cunningham seems to be, in fact, the missing opinion she never filed in Booker.

Posted by: Anon | Jan 23, 2007 10:52:15 PM

"If the federal system is a true advisory system, then a federal judge can go up for no reason at all."

As a critique of the Alito opinion, this just begs the question. Alito's whole point is that, if reasonableness review means anything, it must mean that a federal judge *cannot* "go up for no reason at all." He assumes (and it's not clear to me that he's wrong) that a judge who just sentences the defendant to the maximum allowed by the statute of conviction without giving reasons grounded in the record can and will be reversed. If that's so, then the actual statutory maximum is *not* the "statutory maximum" as that term is used in Blakely. Hence, the tension between the Remedial Opinion and Blakely. Of course, the Court might allieviate this tension by making clear that reasonableness review is extremely relaxed (or that a federal judge can impose a stiff sentence without making any findings of *fact* -- as opposed to judgments about policy or predictions about future behavior). There are certainly hints at that last distinction in Cunninghmam, though I assume I'm not alone in finding it an odd and unattractive one.

Posted by: Brian | Jan 24, 2007 9:54:38 AM

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